Approvals come through for Deferred Action petitions

Jan 13

USCIS has finally begun to issue approvals of the deferred action petitions filed beginning in August 2012, including for many clients of the Hernan Law Firm. Early applicants have been receiving approval notices over the last month or two, as well as their employment authorization cards.

For more information about the deferred action for childhood arrivals process, please call the Hernan Law Firm today at (678) 275-4000 for a free, no obligation consultation. Also, feel free to use the Make an Appointment link above to set up a consultation with attorney Jamie Hernan. Also, visit www.hernanfirm.com/immigration or http://www.deferredactionplan.com/.

Jan 13

On January 2, 2013, USCIS announced the long awaited posting of the final rules for the provisional waiver process, a sensible solution to a component of immigration law that caused families to be separated during the petition process for immediate relatives (spouses, parents and children) who had entered the United States without inspection. Because of the beneficiary’s status and method of entry into the United States, the former process would require that they leave the country and apply for a waiver of their inadmissibility caused by such status. That could result in immediate relatives being separated from their families for extremely long periods of time, even as much as ten years. Under the process proposed early in 2012 and outlined with today’s announcement, the immediate relative will be able to apply for that waiver of inadmissibility while in the United States. While they still must depart the United States to obtain their visa through a consular process, if approved for the provisional waiver they would depart the country with the comfort and knowledge that they will be granted reentry promptly.

To be approved for a provisional waiver, the applicant must show that their immediate relative will suffer extreme hardship if they are not allowed to reenter the United States.

In other words, an individual who was previously unable to petition for their spouse, parent or child out of fear that their loved one would be forced to be out of the country for an extended period of time may now apply for a waiver of the bar to reentering the United States as part of the petition process. Once the beneficiary has an approved provisional waiver, they will be able to depart the United States knowing that the United States government has waived their inadmissibilty based on their method of entry into the United States.

It is important to note that this process not only makes sense for the important purpose of maintaining family unity, it will also likely be much less expensive for USCIS and the State Department to be able to have the waiver process handled from within the United States rather than at consular outposts around the world. Further, the final rules state that any increase in processing costs will be offset by fees charged to applicants.

Applicants will be required to file a new form (I-601A) to seek the provisional waiver. The process will be effective March 4, 2013.

For more information about the provisional waiver process, call the Hernan Law Firm at (678) 275-4000 for a free, no obligation consultation, or visit www.hernanfirm.com/immigration.

Aug 12

Applicants for the newly announced Deferred Action for Young People process will not be eligible if they have ever been convicted of a felony, a significant misdemeanor (defined further below), three or more misdemeanors or otherwise pose a threat to national security or public safety.

What constitutes a significant misdemeanor?

According to USCIS:

For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,

If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

To communicate directly with Attorney Jamie Hernan regarding the Deferred Action Process, contact the Hernan Law Firm at (678) 275-4000 or click on the “Make an Appointment” tab on this website.

Aug 12

One of the main concerns regarding the Deferred Action Process for Young People is whether or not individuals that are not currently in removal proceedings could be subjecting themselves to possible immigration enforcement actions by submitting their information to USCIS. Because deferred action is a discretionary form of relief that can be revoked at any time, many young people are worried that submitting their information creates more risk than the reward of possibly being granted deferred action.

On August 3, 2012, US Citizenship and Immigration Services (USCIS) announced that it maintains the right to exercise its discretion in determining whether or not it is appropriate to refer applicants to Immigration and Customs Enforcement. In announcing their policy on this issue, USCIS has stated:

“If your request for consideration of deferred action
for childhood arrivals is denied, USCIS will apply its
policy guidance governing the referral of cases to U.S.
Immigration and Customs Enforcement (ICE) and the
issuance of Notices to Appear (NTA). If your case does
not involve a criminal offense, fraud, or a threat to
national security or public safety, your case will not be
referred to ICE for purposes of removal proceedings
except if DHS determines there are exceptional
circumstances.”

Aug 12

US Citizenship and Immigration Services announced more details today regarding the Deferred Action for Young People process.

Application forms will be made available through USCIS on August 15, 2012. Any petition filed prior to that date seeking deferred action under the new policy will be rejected.

The total filing fee for the process will be $465. This will include the cost for the application for a employment authorization document.

To be eligible, applicants must:

1. Have been born after June 15, 1981;

2. Arrived in the United States before the age of 16;

3. Have continuously resided in the United States since June 15, 2007 up to the present time;

4. Been present in the United States on June 15, 2012;

5. Entered the United States without inspection before June 15, 2012 or had lawful immigration status that was expired as of June 15, 2012;

6. Be currently in school, graduated or received a certificate of completion from high school, obtained a general eductional development certificate (GED) or be an honorably discharged veteran of the Coast Guard or US Armed Forces,

7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors and do not otherwise pose a threat to national security or public safety; and

8. Be at least 15 years of age at the time of filing, if they have never been in removal proceedings or if their case was terminated before your request.

Aug 12

The forms to request consideration of deferred action and employment authorization for young people who entered the United States as a child will be released by US Citizenship and Immigration Services on August 15, 2012. A link to these forms will be provided in the “Forms” section of this website.

DO NOT SUBMIT A REQUEST FOR CONSIDERATION OF DEFERRED ACTION BEFORE THE FORMS HAVE BEEN RELEASED. Any request submitted prior to August 15, 2012, or using the wrong forms, will be rejected.

To communicate directly with Attorney Jamie Hernan regarding the Deferred Action Process, contact the Hernan Law Firm at (678) 275-4000 or click on the “Make an Appointment” tab on this website.

Jul 12

Treating catastrophic and other serious trauma related injuries from automobile, motorcycle or trucking accidents in the state of Georgia

When involved in a serious automobile accident in Georgia, close proximity to a Level One Trauma Center can be the difference between life & death. Georgia currently has five hospitals with the distinction.

What is a Level One Trauma Center?

A Level One Trauma Center refers to the capabilities of a hospital to serve the critical needs of patients severely injured through a trauma related incident, whether from an automobile, motorcycle or trucking accident (or another cause of trauma related injury). As the highest trauma center rating in the state, hospitals strive to maintain the distinction.

To be designated as a Level One Trauma Center by the Georgia Department of Community Health, a hospital must be able to prove that it staffs its emergency department and trauma operating room at all times with a full team of doctors including surgical staff in different disciplines such as neurological or orthopedic specialty areas. It must show it has the best equipment and resources available to treat patients with catastrophic injuries (whether from an automobile, motorcycle or trucking accident or other traumatic injury). And, it must be able to show that it treats a high volume of trauma related patients throughout the year. Individuals critically injured in an automobile accident will increase their chance of survival by up to 25% by receiving treatment in a Level One Trauma Center, according to the Atlanta Medical Center.

The Georgia Trauma Commission (www.georgiatraumacommission.org) was established to promote the long term development of the trauma care network in the State of Georgia and identify limitations and develop a long term vision for an enhanced network capable of best serving patients in critical need of trauma related care in Georgia. The Commission recently developed a strategic plan to help it realize its vision to expand the system, help reduce traumatic injury, coordinate with disaster/homeland security preparedness, enhance support for rural Georgia and more.

The five Level One Trauma Centers in the State of Georgia serving severely injured automobile, motorcycle and trucking accident victims are:

GRADY MEMORIAL HOSPITAL

Address:

80 Jesse Hill Jr. Drive SE

Atlanta, GA 30303

Telephone: (404) 616-1000

Grady was well known in the Metro Atlanta area as being the only Level 1 Trauma Center in the area for a long time (until Atlanta Medical Center was recognized as a Level One Trauma Center in 2011). The hospital’s emergency department treats upwards of 300 patients per day (that’s 100,000 per year). Of those, upwards of 3,000 are trauma patients each year.

In partnership with Emory University and Morehouse School of Medicine, Grady is able to operate a trauma operating room that never closes, staffed with a surgical team from many medical disciplines.

ATLANTA MEDICAL CENTER

Address:

303 Parkway Drive NE

Atlanta, GA 30312

Telephone: (404) 265-4000

The third busiest trauma center in the State of Georgia, Atlanta Medical Center recently was awarded the distinction as a Level One Trauma Center in 2011.

MEDICAL CENTER OF CENTRAL GEORGIA

Address:

777 Hemlock Street

Macon, GA 31201

Telephone: (478) 633-1000

Located in Macon, the Medical Center of Central Georgia is the second largest hospital in Georgia and provides the only Level One Trauma Center in its region of the state. The Emergency & Urgent Care Services unit at the Medical Center of Central Georgia serves approximately 65,000 patients per year. The hospital’s EMS department generally serves patients from Baldwin, Bibb, Jones and Twiggs counties.

GEORGIA HEALTH SCIENCES MEDICAL CENTER

(formerly Medical College of Georgia)

Address:

1120 15th St

Augusta, GA 30912

Telephone: (706) 721-3153

Serving over 13 counties, the hospital at the Georgia Health Sciences University (formerly referred to as the Medical College of Georgia ) in August, Georgia serves thousands of patients each year as the only Level One Trauma Center in its region.

MEMORIAL HEALTH UNIVERSITY MEDICAL CENTER

Address:

4700 Waters Avenue

Savannah, GA 31404

Telephone: (912) 350-8000

As the only Level One Trauma Center in the southeastern corner of the state, Memorial Health University Medical Center’s emergency services unit serves approximately 80,000 patients per year. The hospital serves 28 counties in Georgia and South Carolina.

Jul 12

Despite its significant pitfalls and severe consequences for non-compliance with sentence conditions, the State of Georgia’s First Offender Act provides individuals not previously convicted of a felony with the opportunity to plead guilty to a criminal charge, pursuant to the provisions of the law, and avoid adjudication of guilt if they comply with the conditions of their sentence. Recognizing the need to provide certain individuals who have not previously been convicted of a felony with the opportunity for a second chance, the State of Georgiaenacted the provisions of Georgia Code (O.C.G.A.) §42-8-60 et. seq. The provisions of the First Offender Act are available for most charges; however, it does not apply to serious violent felonies and does not exempt sexual offender registration requirements or disclosure for background checks for individuals seeking employment providing care for minor children or the elderly.

Following the plea of guilty under the First Offender Act, the judge withholds the adjudication of guilt that would normally follow and instead defers judgment in the case and sentences the Defendant to a term of probation or incarceration (or a combination of both) along with other conditions of the sentence. Upon successful completion of the sentence conditions, a discharge is filed which “completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties.” Accordingly, the individual does not have a criminal conviction in connection with the case pled under the First Offender Act and, thus, isnota convicted felon, may continue to vote, own or possess lawfully a firearm, and maintain other rights or liberties that would be lost with a felony conviction.

The Cost of Exoneration

The First Offender Act does not, however, provide a Get Out of Jailfreecard. In fact, the potential for complete exoneration comes at a potentially hefty cost. As set forth in O.C.G.A. 42-8-60(b), a violation of the terms of the first offender sentence affords the court the opportunity to enter the adjudication of guilt and sentence the Defendant to the maximum punishment allowable under the law. By contrast, with a traditional sentence a violation of the terms of probation can result in a revocation of only the remaining term of probation.

What is Probation?

It is important to note that probation is essentially a sentence of confinement that allows a Defendant to serve the allotted time outside of jail as long as they meet certain conditions. Upon a violation of those conditions, the probation can be revoked and the Defendant sentenced to confinement for any period of time up to the remaining term of probation.

By contrast, a sentence of probation under the First Offender Act operates under different rules. Violations of probation in such cases (or conviction of another crime, which would likely be a violation of probation) can result in the judge sentencing the offender to the maximum term allowable based on the charge, even if that sentence would result in confinement for a period longer than the original probated sentence.

As a hypothetical example, Defendant X pleads guilty to felony burglary in violation of O.C.G.A. Section 16-7-1 and is sentenced to three years probation under the First Offender Act. Two years into his sentence he violates the terms of his probation. Defendant Y also pleads guilty to felony burglary, but he agrees to a traditional plea of guilty without invoking the benefits of the First Offender Act and is sentenced to three years probation. Two years into his sentence he violates the term of his probation. Both Defendants go before the same judge on the same day for probation revocation hearings. The judge can adjudicate Defendant X as guilty and sentence him to as much as twenty (20) years in prison, likely with credit for time served. On the contrary, Defendant Y may have his probation revoked; however, the judge can only sentence him to the one year of confinement remaining in his original probated sentence.

Due Process

During a plea under the First Offender Act, the prosecutor will usually require the Defendant to state on the record that s/he has not pled guilty or been otherwise convicted of a felony in the past and that s/he has never used first offender protection. To ensure that the Defendant understands the ramifications of a plea under the First Offender Act, both good and potentially bad, the presiding judge will likely inquire of the Defendant on the record whether s/he understands the benefits and drawbacks of the program. In the event that a otherwise eligible individual is pleading guilty to a felony and electing not to use the provisions of the First Offender Act, the judge will likely also have the Defendant state on the record that they do not want to be afforded first offender status.

Jul 12

As members of a commonly misunderstood health care profession, doctors of chiropractic (chiropractors) are constantly having to fight against the misconception that their area of treatment is hokey, ineffective or misguided. However, speak to most people treated by chiropractors after a car accident and they will usually tell you that they experienced the greatest relief and best moved along the path to recovery from their soft tissue injuries after the treatment from their chiropractor.

Chiropractors focus on musculoskeletal and nervous system disorders, using a variety of treatment methods including, but not limited to, spinal manipulation, hot/cold therapy, electrical stimulation, exercises and more. Their treatment plans are often combined with physical therapy treatment and oversight by a medical doctor.

But, again, why chiropractic? Chiropractic care is a well regulated, organized complementary and alternative medical treatment option. The manual therapy and hands-on approach of chiropractic care often provides patients with greater relief than traditional medical treatments (physiotherapy, medicine, counseling and education). Of course, chiropractic care is not appropriate for many types of injuries, especially those that may require more specialized care, surgical intervention or complex treatment. Chiropractic care can be complementary to other treatment regiments from medical doctors, therapists, counselors, and other providers.

Chiropractors and medical doctors have not always worked well together. As discussed in a 1989 letter to the editor in the American Journal of Public Health, the AMA declared in 1965 that it would be an ethical violation for medical doctors to associate professionally with chiropractors. It ultimately took a judge’s order, resulting from an anti-trust suit filed by chiropractors against the AMA, for the AMA to reverse course. That hard line stance has softened over the years. A 1992 opinion by the AMA states that:

” It is ethical for a physician to associate professionally with chiropractors provided that the physician believes that such association is in the best interests of his or her patient. A physician may refer a patient for diagnostic or therapeutic services to a chiropractor permitted by law to furnish such services whenever the physician believes that this may benefit his or her patient. Physicians may also ethically teach in recognized schools of chiropractic.” –Opinion 3.041, Issued March 1992

Recognizing the benefits of chiropractic care in appropriate situations, now medical doctors, chiropractors and physical therapists work side by side to develop treatment plans that are in the best interests of their patients and promote the most effective and efficient recovery from injuries sustained in an auto accident.

It is the hands on approach of chiropractic care that uses spinal manipulation and other treatments to help promote the natural healing capabilities of the human body. Rather than relying simply on medication and home care exercises, chiropractic techniques essentially work with the body’s own healing mechanisms and ultimately can help relieve pain, promote health, increase range of motion and help auto accident victims to try to return to their normal, daily routine.

When choosing a chiropractor, patients need to be sure to select a provider that is well informed in the latest chiropractic techniques, knows the patient’s history, has the proper equipment and resources to ensure that the patient is not suffering from an injury that needs a different method of treatment or that could be exacerbated by manipulation, and that cares about promoting the recovery of the patient rather than simply pushing them through a cookie cutter treatment plan.

According to WebMD, research supports the benefits of chiropractic care for back and neck pain and relief from headaches. A vast majority of personal injury attorneys would likely attest that the majority of their clients suffering from soft tissue injuries obtain significant relief from the treatment afforded by chiropractors. And, many insurance companies now recognize the benefits of chiropractic care and include such treatment in the covered options of their plans (albeit sometimes with limitations of the number or type of treatments that are authorized).

For information about the benefits of chiropractic care, individuals injured in an auto accident should consult with their doctors about whether such care would be appropriate and set up an appointment with a chiropractor to better understand how he or she can help promote the patient’s recovery.

Sources:

American Chiropractic Association (www.acatoday.org)

National Center for Biotechnology Information website publication of a 1989 publication of the American Journal of Public Health (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1349822/pdf/amjph00237-0113b.pdf)

Jul 12

“Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” – 8 C.F.R. §287.7(d)

If Immigration and Customs Enforcement (ICE) identifies an individual in the custody of a local criminal justice agency as someone they want to take into custody to place into removal proceedings, they can place a detainer on the person (referred to as an immigration hold). The regulatory authorization for a jail to detain the person based on the immigration hold comes from the Code of Federal Regulations (8 C.F.R. §287.7(d)). When the individual that is the subject of the detainer would not otherwise be detained by the jail (for example, because they paid a bond, completed a sentence or their case was dismissed), ICE has forty-eight (48) hours (not including Saturdays, Sundays or holidays) to take the individual into custody. If ICE does not take the person into custody, the criminal justice agency is no longer authorized to detain the individual and “hold” them for ICE.

The personnel and management of many jails do not understand the forty-eight hour rule and miscalculate when the time period actually begins (which should be when the person would otherwise be released – such as when they pay their bond). ICE has recently revised the detainer form (I-247) used to notify the criminal justice agency to hold the individual. To stress to jails that the person should not be held longer than forty-eight hours, ICE has even titled the form “MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS” in all caps and bold face type.Citing the conditions of 8 C.F.R. §287.7(d), the new form states:

“Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays, and holidays, beyond the time when the subject would have otherwise been released from your custody to allow DHS to take custody of the subject. This request flows from federal regulation 8 C.F.R. § 287.7, which provides that a law enforcement agency “shall maintain custody of an alien” once a detainer has been issued by DHS. You are not authorized to hold the subject beyond these 48 hours.” (Emphasis in original)

Despite the clarity of the regulation and the I-247 detainer form, the personnel and management of local jails still believe that they are authorized (or, at least, justified by an “ends justifies the means” mentality) to hold an individual beyond the forty-eight hours if they think ICE is coming to take the person into custody.

The second and third pages of the form provided to detainees provide a notice in multiple languages regarding the forty-eight hour rule. The form provides detainees with a number to call if they are not released timely, as well as a number for US citizens or victims of crimes to call for specialized support.

The notice reads in English:

“The Department of Homeland Security (DHS) has placed an immigration detainer on you. An immigration detainer is a notice from DHS informing law enforcement agencies that DHS intends to assume custody of you after you otherwise would be released from custody. DHS has requested that the law enforcement agency which is currently detaining you maintain custody of you for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) beyond the time when you would have been released by the state or local law enforcement authorities based on your criminal charges or convictions. If DHS does not take you into custody during that additional 48 hour period, not counting weekends or holidays, you should contact your custodian (the law enforcement agency or other entity that is holding you now) to inquire about your release from state or local custody. If you have a complaint regarding this detainer or related to violations of civil rights or civil liberties connected to DHS activities, please contact the ICE Joint Intake Center at 1-877-2INTAKE (877-246-8253). If you believe you are a United States citizen or the victim of a crime, please advise DHS by calling the ICE Law Enforcement Support Center toll free at (855) 448-6903.”

Many individuals are often held beyond the forty-eight hours authorized by federal regulations because the personnel and management of local jails have misinterpreted their limited authority to detain an individual so that they can be taken into custody by ICE, despite the efforts by ICE to clarify the forty-eight hour rule and dispel the belief amongst local criminal justice agencies that individuals can be held ad infinitum if ICE is coming to get them. It is not uncommon for attorneys to hear “ICE wants ’em, and ICE is gonna get ’em,” even though ICE itself has stressed in the detainer form that after forty-eight hours the individual should be released.